Holiday Break

Folks,

I'm taking a break for the holidays and won't post anything substantive until after the first of the year.

Enjoy your holidays.

Thanks.

Virtual Hip Replacement

Here's an interesting link to watch a virtual hip replacement.

http://www.edheads.org/activities/hip/index.htm

A Famous Quote and Case Law Too

Joseph Story said that the law "is a jealous mistress." Those of you who are lawyers -- or are married to a lawyer -- know this to be true. I have lost many a night's sleep reading, studying, and learning the law (she just won't let you go sometimes).

If you are the same way (or your spouse is), you should read this case: Overstreet v. Shoney's Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999). This opinion is an excellent overview of the elements of a personal-injury claim in Tennessee. Judge Koch authored the opinion and -- as always -- did an excellent job.

Enjoy the read.

Rule 12 Motions to Dismiss Are Not Responsive Pleadings

Yes, you read the title of this post correctly. Rule 12 motions to dismiss are not responsive pleadings for purposes of Rule 15 amendments to complaints (of course, we are talking about the Tennessee Rules of Civil Procedure here).

Why is this important? It's important because a lot of lawyers (myself included, until recently) think that you can't file an amended complaint without the other side's permission or leave of the court if a motion to dismiss is pending (Rule 15 allows an amended complaint to be filed any time before a repsonsive pleading is filed). This is simply not the case. Adams v. Carter Cnty. Mem'l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (stating that a motion is not a responsive pleading); Vincent v. CNA Ins. Co., No. M2001-02213-COA-R9-CV, 2002 WL 31863290, at *5 n.4 (Tenn. Ct. App. 2002) (also stating that a motion to dismiss is not a responsive pleading).

NBA's Appellate Practice Manual: Update

I have posted before about the Nashville Bar Association's ("NBA") manual on appellate practice in Tennessee. It has recently been updated. To get to it, you can go to the NBA's Web site. The site is located at http://www.nashbar.org/, then click on the "Members" tab on the left-hand side. The manual (updated in June) is there to view or download.

Good luck!

Politics, Government, and America

This really has nothing to do with the law (at least not directly), but, whether you're a Democrat or a Republican (or a member of any other political party), you have to remember that we are all Americans. Americans who want the same things, e.g., to be safe from terrorism, good schools for our kids, to make a good living, and so on. These are true no matter what political party you belong to.

Somehow we have lost sight of the fact that we are ONE nation (made up of Democrats, Republicans, and all other political parties). This is what has made this American "experiment" in government work so well (i.e., everyone has a voice -- if they choose to exercise it). Sure, some may say that it's a terrible system, but, look around, it's still the best thing going. I always say: "Nothing worth having comes easy." This is true for almost everything. For our system of government to continue to work, we need more citizen involvement, and we need people to step up and not just assume that "someone else will do it." I'm going to "step up" and do more. Are you? You should if you're able to do so.

Cases That Cannot Be Recommenced After Being Voluntarily Dismissed

There are at least two types of cases that cannot be recommenced after they have been voluntarily nonsuited/dismissed. The first is a Governmental Tort Liability Act ("GTLA") case. Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001) (stating that the savings statute will not extend time in which an action must be filed under Tennessee's GTLA). The second type of case is a will contest action. In re Estate of Barnhill, 62 S.W.3d 139 (Tenn. 2001) (holding that a will contest action cannot be refiled after it has been voluntarily nonsuited/dismissed).

The Tennessee Claims Commission: Rules of Procedure

For the most part, the rules governing procedure in the Tennessee Claims Commission are the same as in circuit or chancery court. There are, however, some differences. You can find out what they are at this link:

http://www.state.tn.us/sos/rules/0310/0310-01-01.pdf

Products Liability Law

Interested in products liability law? Need to find an answer to a products liability question? Scott Baldwin (a pioneer in this area of the law), and others, have written an excellent book on this subject. The name of the book is: Preparation of a Product Liability Case.

Aspen Publishers has it. The link to their site is below:

www.aspenpublishers.com

Once you get to their site, click on the "Litigation, Insurance & Tort Law" link, and then the "Product Liability/Tort Law" link to find this book.

An ERISA Roadmap

ERISA can be confusing enough without having to try and figure out which part of it is located where (for those of you who don't know, ERISA is not in sequence in the United States Code). Here is a roadmap of what sections are located where, to wit:

http://benefitslink.com/erisa/crossreference.html

Thanks to my friend and ERISA lawyer John Wood for pointing this out to me.

The Importance of Time Management and Atticus

Time management is one of the most difficult problems a lawyer faces -- it truly is. I attended the Tennessee Trial Lawyers Association's Annual Convention at The Peabody in Memphis, Tennessee last month.

At the Convention, Mark Powers (President of Atticus) spoke about time management strategies for your practice. He was great! He offered a lot of insight into the blatantly obvious "traps" that lawyers fall into all the time with their practices, e.g.: poor time managment, failing to delegate non-legal duties, etc. All of this results in running out of time to get things done, working weekends, missing out on family time, not marketing your practice, and so on. Most, if not all, of these "traps" can be avoided with careful time management. That's where Mark comes in to help.

Here's the link to his Web site: http://www.atticusonline.com/

Click on the "Articles" tab at the top and read the article entitled: "Ranking Your Clients: The Good, the Bad and the Ugly."

Mark and Atticus can change how you practice law -- for the better!

Get your life back and keep your law practice!

Runaway Juries?

Why is it that when I file a lawsuit (medical malpractice, car wreck case, etc.) and I don't ask for a jury, the defense does?

If juries are so "out of control" why does the defense almost ALWAYS ask for one?

Food for thought.

Statutes of Limitation for Every State

Here's a link to a Web site that has the statute of limitations (personal injury) for each state, to wit:

http://freeadvice.com/resources/personalinjury_statute_of_limitations.htm

(Please read my disclaimer at the top of this Blog; I am in no way endorseing this site or its contents.)

Did Somebody Say "Mary Carter"?

Have you ever heard of a "Mary Carter" agreement? I had not, not until today.

If you have, then you know what I'm talking about (i.e., a type of settlement agreement in a multi-party lawsuit). If you haven't, you can read about it at this link:

http://www.settlementnegotiation.org
/settlementconference/marycarter.html

I thought this might be of interest to some of the younger lawyers out there like myself.

Supreme Court of Florida Overturns $145 Billion Punitive Damage Award

Today the Florida Supreme Court overturned a $145 billion dollar punitive damage award. The Court held that the award was excessive as a matter of law.

Here's the link to the story:
http://news.moneycentral.msn.com/ticker/article.asp?
Feed=AP&Date=20060706&ID=5847740&Symbol=US:MO

Have a Great 4th!

Folks,

I will be out of pocket and will not post anything until after Tuesday.

Enjoy this weather, the food, fun, your families, and the fireworks!

Have a great 4th!

Dynamite and Deadlocked Juries

Judge Cottrell, writing for the Middle Section of the Tennessee Court of Appeals, authored an opinion that was released yesterday in Waters v. Coker regarding "dynamite charges" given to a deadlocked jury.

The court held that the charge given was prejudicial, reversed the trial court, and remanded the case for a new trial. (The first trial was a two week jury trial, too.)


The link to that opinion is as follows:
http://www.tba2.org/tba_files/TCA
/2006/watersg063006.pdf

This case is a good reminder to counsel and the judiciary about how "dynamite charges" should be used. (I had forgotten about some of this and found the opinion to be a great reminder.)

Ex Parte Contact with Non-Party Physicians Disallowed

Today, the Tennessee Supreme Court, in Alsip v. Johnson City Medical Center, ruled that ex parte communications between defense counsel and a plaintiff's non-party physician are not allowed.

The link to the opinion is as follows:
http://www.tsc.state.tn.us/OPINIONS/CURRENT/AlsipJenniferOPN.pdf
/AlsipJenniferOPN.pdf CURRENT/AlsipJenniferOPN.pdf

The Court held that these sort of communications violate the implied covenant of confidentiality between physicians and patients. (This only makes sense because a person's medical information is very intimate.)

Moreover, the Court reasoned, this information can be obtained through formal discovery -- if it is relevant.

Liability Insurance Information Should Be Discoverable

Yes, you read the title of this post correctly. Liability insurance information should be discoverable. In fact, in Davidson County and most of Middle Tennessee, it is. In other parts of the state it's not.

While liability insurance in and of itself does not determine whether or not there's money to fund a settlement or if a judgment will be collectible (especially when it comes to individual defendants), it does help to know if what you're pursuing is worth pursuing. And the earlier that all interested parties know this the better.

Judge Walter Kurtz ruled in Green v. Nashville Otolarynology Consultants, Davidson County Circuit Court, Case No. 95C-3947 (June 10, 1998) that liability insurance information was discoverable under Rule 26.02 of the Tennessee Rules of Civil Procedure. Part of the court's reasoning was that discovery of the nature and extent of liability insurance coverage promotes the efficient and effective administration of justice by assisting the parties in informed settlement negotiations.

If you haven't read this opinion, you need to; if you have read it, read it again. I believe that Judge Kurtz's interpretation of Rule 26.02 is correct, especially when one reads Rule 1 which requires that these rules "shall be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added.) The disclosure of liability insurance information can only help facilitate these Rule 1 dictates.

The Tennessee Trial Lawyers Annual Convention, Etc.

I haven't posted anything in a while, and I apologize. Things have been hectic. I spent most of this past week in Memphis at The Peabody Hotel for the Tennessee Trial Lawyers Annual Convention -- and it was great! This convention was one of the best I have ever been to -- bar none. The speakers were very accomplished trial lawyers from all over the country. Gary Gober (who organized it) and the TTLA staff (who kept it going) did an excellent job.

To change gears a bit, rarely does someone ever write or say something that is almost the exact thing you were thinking, but, this time I am going to ask you to read today's post (June 17, 2006) on John Day's blog (available at: http://www.dayontorts.com/). He hit the nail right on the head. I couldn't agree more with what he has to say. Some of the people John names are trial lawyers who are my friends, mentors, and are people who care tremendously about what they do. They have given of their time and money for decades -- to help us all.

If you are an attorney in Tennessee who does any trial work at all (e.g., domestic relations, criminal defense, and yes, personal injury), you should be a member of TTLA -- an active, money-giving member!

SCOTUS Delivers Unfavorable ERISA Opinion

In Sereboff v. Mid Atlantic Medical Serv's LLC, the Unites States Supreme Court held that the health insurance plan was seeking an allowed equitable remedy (as opposed to a disallowed legal remedy) when it sought to enforce an agreed-upon lien.

The Court, while acknowledging that Mid Atlantic's sought-after relief must be equitable under section 502(a)(3) of ERISA to be enforceable (per Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002)), relied upon it's holding in Barnes v. Alexander, 232 U.S. 117, 121 (1914), and held that a "lien" that was agreed upon by the parties (and where the res was in the possession of the insured plaintiff, i.e., the res was identifiable per Knudson) was enforceable in equity. (The parties in Sereboff agreed that the amount in dispute (app. $75,000) would be set aside in a separate account until this matter could be resolved.) Thus, Mid America's claim, in this instance, was enforceable against the Sereboffs under ERISA because it was equitable in nature according to the Court's holding in Barnes (i.e., the "lien" was reached by an agreement of the relevant parties); and it was identifiable (per Knudson).

The opinion is available at:
http://www.supremecourtus.gov/opinions/05pdf/05-260.pdf
(You may need to copy this link and Google it to pull up the opinion.)

This opinion is a hard pill to swallow if you represent plaintiffs. It does, however, appear that the Made-Whole Doctrine is still viable (to the extent it was before), if the plan's claim is not based upon an agreed-upon "lien" between the plan and the insured plaintiff. (See page 11 of the opinion.)

View Surgeries Via Web

This link will allow you to view both archived and live surgeries via the Web at:
http://www.or-live.com/

I thought this link would be of interest to you.

A Tennessee Trial Practice Resource

Thomson-West publishes a book by Judge Robert E. Burch entitled Trail Handbook for Tennessee Lawyers. It's a great book, whether you're a civil or criminal practitioner.

It's an easy-to-use book that can save you a ton of time. (I tried to find the link for it on Thomson-West's Web site but I had trouble finding it; I know they have it though, because I have purchased two volumes from them.)

A Tennessee Legal Resource

I was doing some research on the Web and I came across this page:

http://law.vanderbilt.edu/library/research/tennessee
_legal_publications.html.

There's some good stuff there (e.g., Tennessee specific resources on evidence, civil procedure, etc.). It shows you where to find a resource in Vanderbilt's law library too.

Enjoy!

Tennessee Local Rules of Court

Here's a link for the local rules throughout Tennessee:

http://www.tsc.state.tn.us/geninfo/courts/LocalRules
/LocalRules.htm

I'd safe this link so that you can access it in the future.

Wrongful Death Proceeds: How Are They Distributed?

In Tennessee, wrongful death proceeds are distributed under the laws of intestate succession. Kline v. Eyrich, 69 S.W.3d 197, 202 n.3 (Tenn. 2002).

Also, the proceeds pass free of creditors' claims. Tenn. Code Ann. sec. 20-5-106 (a),(b).  There may, however, be exceptions to this premise: namely, Medicare subrogation, etc.

Calaway: The Petition to Rehear

For those of you that haven't heard, and who have followed Callaway, here's the link to the per curiam order of the Tennessee Supreme Court regarding the petition to rehear, inter alia:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/062/calawayord.pdf

For purposes of explanation, Calaway held that a minor's medical malpractice claim is not tolled during minority. Based upon prior case law, most everyone familiar with Tennessee law thought minors' claims were tolled. Justice Barker writing for the Court held that this was a matter for the legislature because the Tennessee Medical Malpractice Act does not allow for tolling of such a claim.

Hope You Have a Happy Holiday

Happy Easter or Passover to you all.

Sorry if there has not been a substantive post in a while, I've been swamped. I will get back to the grind on Monday. Meanwhile, I hope everyone has a great holiday.

Personal Injury Claims & Bankruptcy

Have you ever had a personal injury client come to you and they're in bankruptcy, or have been recently discharged? If you have, you need to read this case: Headrick v. Bradley Cnty. Mem'l Hosp., No. E2005-00925-COA-R3-CV, 2006 WL 236931, at *2-7 (Tenn. Ct. App. January 31, 2006) (no application for perm. to appeal filed as of March 27, 2006). It largely depends upon whether the debtor's case was a Chapter 7 or 13, and when the debtor's cause of action accrued.

You should also look at Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043-44 (11th Cir. 2004) for a general view of the effects of bankruptcy law on a post-petition tort suffered by a debtor.

Headrick is available at:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/061/headrick.pdf

Curious About Tennessee Verdicts?

If you're curious about Tennessee verdicts, try this site: http://juryverdicts.net/

This site has jury verdicts for other states, and federal verdicts, too.

Health Cost Controls Inc. Part II

For those of you who follow subrogation or related issues in Tennesee, you must read this case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/061/
HealthCostControlsOPN.pdf

This is the second round of a fight that is far from over.

Another Great Book

Here's a great book. It's called Facts Can't Speak for Themselves, and it's written by Eric Oliver. It's available from the National Institute for Trial Advocacy ("NITA") at a cost of $65. If you have a trial practice, you've got to get -- and read -- this book!

Here's the link to NITA's Web site:
http://www.nita.org/bookorder.asp?Action=Show&Part=1-55681-790-8.

A Great Federal Court Reference Book

If you practice in federal court much you don't need this book. However, if you are a little rusty on certain points of federal practice, this is a great book to have on your shelf. It is the Federal Civil Rules Handbook (2006 ed). It's available from Thompson-West. It is easy to use and has a lot of information in one place.

Orthopaedic Research

Do you have an orthopaedic subject that you need to research? If so, here's a great place to start: http://www.wheelessonline.com/. This is Duke Orthopaedics online version of Wheeless' Textbook of Orthopaedics.

This site is handy if you're reviewing medical charts at you desk and need to find an answer right then and there.

Discovery Abuse

I'm writing an article about discovery abuse and ran across my friend's post on his blog today about the same subject (see www.dayontorts.com). I thought this would be worth sharing.

For those of you in Tennessee, take a look at the comments to Rule 30 of the Tennessee Rules of Civil Procedure. Most of us have experienced some form of discovery abuse in depositions, the comments let you know what you can do about them (e.g., seek sanctions).

Another Helpful Book

Here's a helpful book: The Merck Manual of Medical Information. It's an easy-to-use resource if you have a question about a medical condition, symptoms, or treatment.

It's not the ultimate resource, but it is an inexpensive book that can lead you in the right direction when doing research.

Good luck!

Practice Pointer: Drafting Complaints

Here's a good practice pointer for drafting complaints. When drafting your complaint, take a look at the applicable pattern jury instructions to establish your prima facie case (assuming the facts will support your allegations). It's reverse engineering to ensure that you have pled the essential elements of your causes of action. It also helps in your research too.

Good luck!

Products Liability in Tennessee: Defective or Unreasonably Dangerous

In Tennessee, there is a deviation from section 402A of the Restatement (Second) of Torts (1965). Section 402A requires that a product be both defective and unreasonably dangerous. Tennessee, however, uses the disjunctive and does not require both. Instead, liability is imposed if a product that causes injury was in a defective condition or was unreasonably dangerous. See Cruze v. Ford Motor Co., 1999 WL 1206798, at *10 (Tenn. Ct. App. 1999).

Workers' Compensation: Determining Partial Dependency in a Death Case

Do you know how to determine the amount to be paid to a partial dependant in a death case under Tennessee's Workers' Compensation Law? The formula is set out in Sullivan Elec. Co. v. McDonald, 541 S.W.2d 112, 117-19 (Tenn. 1976).

This issue doesn't come up very often, but, when it does, it's nice to know where to look.

Tort Law Education

How many of you have heard of a case called Grimshaw v. Ford Motor Co. I bet you have, except you know it as the Ford Pinto case. The case where Ford knew there was a problem with the Pinto and that it would blow up if it was rear-ended. Ford chose not to fix it. As a result of Ford's conduct people died and were seriously injured.

There was a trial and Ford was found to be at fault. Also, punitive damages were awarded against Ford in the amount of $125 million and later remitted (reduced) to $3.5 million by the judge. The verdict was sustained by the California Court of Appeals.

If you'd like to read more about it, here's a link to the opinion:

http://online.ceb.com/CalCases/CA3/119CA3d757.htm

You're safe in your cars -- and so are your kids -- partly due to the efforts of trial lawyers. The only way that your average person can hold a company like Ford or Merck accountable for their conduct is via a lawsuit, and possibly a trial. That is the only way.

So, if you are ever rear-ended and your car doesn't explode, thank a trial lawyer. And remember this, the current push for tort "reform" doesn't seek to protect your interests. It seeks to protect the interests of big business -- at your expense.

Another Book

Okay, I had promised a few weeks back that I would start recommending a book (or two) each week. If my memory serves me right, I offered up two a few weeks back and haven't suggested another book since then. So, here's another: The Redbook: A Manual On Legal Style, by Bryan A. Garner (West 2002). Bryan Garner is the current Editor-in-Chief of Black's Law Dictionary and a known authority on legal writing.


The Redbook is an easy-to-use guide that can help answer a legal writing question in a hurry. I use it on a regular basis and it helps; I think it will help you too.

A Tennessee Legal Malpractice Note

Once a case settles, do you think that a former client can bring a subsequent claim for legal malpractice against his or her attorney for malpractice that occurred in the case that settled? They can! At least they can in Tennessee -- New York, too. Take a look at Parnell v. Ivy, 158 S.W.3d 924 (Tenn. Ct. App. 2004).

Congressionally Certified Copies

Have you ever had to get a copy of a document that was certified under acts of Congress? I have...twice in ten years. The first time was when I was in law school working for a law firm; the second time was the other day. You normally use this method of certification to obtain copies of out-of-state wills, birth certificates, and marriage licenses. When you call to get one, people will talk to you like you're crazy. Bottom line: Getting congressionally certified copies is not easy!

Why go to all this trouble you ask? Well, a congressionally certified copy of any document is entitled to be treated the same way in a foreign state as it would be in the state of its origin (i.e., for the most part, the documents are self-authenticating and not subject to exclusion based upon hearsay). This means that the congressionally certified copies are admissible. Sometimes you need to have them to prove your case, e.g., proof of a marriage, death, and so on.

The copies can be of judicial and non-judicial documents. See 28 U.S.C. §§ 1738, 1739.

Take a look at Sections 1738 and 1739. They can help you prove an element of your case.

There Is No Medical Malpractice Litigation Crisis in Tennessee!

Folks,

The Tennessee Medical Association ("TMA") is seeking -- may have already done so -- to have Tennessee declared a "crisis" state, i.e., they are saying we have too many medical malpractice lawsuits. Trust me: WE DON'T!! To the naysayers who want proof that we don't have a medical malpractice lawsuit crisis, here it is, to wit:

1. Here's a recent story from the The Memphis Flyer about the state of malpractice in Tennessee, and the financial condition of State Volunteer Mutual Insurance Company ("SVMIC"). SVMIC is the dominant malpractice insurance carrier in this state. As you can read, SVMIC is financially sound. The URL for this story:

http://www.memphisflyer.com/gyrobase/Content?oid=10517.

2. Professor Tom Baker has written a very informative book entitled The Medical Malpractice Myth. It's avialable at Amazon.com (here's the link: http://www.amazon.com/). His book shows that the current medical liability insurance "crisis" is not the fault of trial lawyers, bad investments by insurance companies, etc. It's due to what is called the "underwriting cycle." And he offers some ways to fix the real problem. What is the real problem? Medical malpractice. Professor Baker offers studies (some performed by doctors) that show that there is not enough medical malpractice suits and too few victims of medical malpractice are compensated.

It all boils down to this: Do we want to base any sort of resolution of this issue upon anecdotes and myths (and base legislation upon them), or do we want to address this issue and base any resolution of it upon facts? Facts that -- if utilized -- will help compensate more victims of medical malpractice and help improve our healthcare system. My vote is to utilize the facts.

When you view the facts it is clear, there are not too many medical malpractice lawsuits -- in Tennessee or in the United States. The TMA's position -- and anyone else who subscribes to this belief -- is inaccurate. It's up to us (as attorneys and concerned citizens) to ensure that the myth is revealed for what it is: a myth, a fallacy, an untruth.

MORE IMPORTANTLY: SHARE THIS INFORMATION WITH YOUR LEGISLATOR!

Tennessee Practice Point

Here's a link to a civil case that discusses Batson challenges. These cases are so rare that I thought you'd enjoy reading it.

The link is here: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/054/ZakourPopn.pdf

Expert Opinions

I was in East Tennessee yesterday, so I apologize for a lapse in the posts. However, this one is a good one (if I do say so myself).

If you have any question about the admissibility of your expert's testimony, or even if you don't but you still want to stay current, you should read Brown v. Crown Equipment Corporation (http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/054/BrownCopn.pdf).
You may need to Google this link for it to come up.

The admissibility of expert testimony in Tennessee is governed by McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). In Brown, the Tennessee Supreme Court held that all of the nonexclusive factors set out in McDaniel are not mandated, and do not need to be present, for an expert's testimony to admissible.

This is a must-read case.

This Should Make You Fighting Mad!

Folks, whether you're a Democrat or Republican, this story should make you fighting mad! It's not right! (Whether it's legal or not.) Their actions take the power from the people and place it in a very select few (I realize that some people would argue that this has always been the case). These type of antics should not be tolerated.

My beef is this: It's not who did what, it's what was done! If you're an American, this should bother you.

The link to the story is below:

http://www.tennessean.com/apps/pbcs.dll/article?AID=
/20060209/NEWS02/602090405

Another Practice Tip

The United States District Court for Tennessee, Middle District, has a manual for practice and procedure. Here's the link: http://www.tnmd.uscourts.gov/practicerules.html.

Thought this would be useful.

Practice Tip

Rule 36 of the Tennessee Rules of Civil Procedure requires that requests for admissions be responded to within 30 days. If they are not, they are deemed admitted. We all know this. However, do you have to bring these technically admitted requests to the court's attention (via a motion) to rely upon them? The answer is probably yes. See Tennessee Dept. of Human Servs. v. Barbee, 714 S.W.2d 263 (Tenn. 1986)

Use Your Treo for Case Investigation

I recently broke down and purchased a Palm Treo 650 Smartphone. I didn't think it would be that handy, but hey, I wanted one. Well, as it turns out, it's very handy. Why? Because I used it to take pictures of the scene of a slip and fall recently. And I didn't have to worry about bringing a camera with me (but I almost always have my phone with me).

Curiosity made me stop by the scene (it was on my way home), but since I had my Treo with me it was so easy to get the pictures. Now I have these pictures I can look at on my laptop (transferred from my Treo) when I'm discussing the case with the potential new client., etc., etc.

I know this seems so obvious, but it's almost like that milk carton sitting in the front of the fridge -- right in front of you! -- but you don't see it. I'm willing to bet that there are others out there who haven't thought of this yet either. Anyway, I thought this was a good use of a Treo, and I thought I would share.

Two New Books From David Ball

I promised that I would recommend one book a week on this blog, however, these two books are too good not to discuss together. Why? They are from David Ball. The first is Theater Tips and Strategies for Jury Trials, Third Edition. The second is David Ball on Damages: The Essential Update. Both are available from the National Institute for Trial Advocacy (NITA). NITAs Web site is at www.nita.org.

These books are an invaluable addition to your library.

A Weekend Off

Folks, it's Super Bowl weekend and I'm taking it off. I will be back on Monday with some new stuff, and a new book recommendation.

Thanks for reading.

ERISA Information

There is no doubt that ERISA is a complicated area of the law that seems to exist in a perpetual state of flux. All this can be daunting and confusing to even the most-experienced practitioner. However, there is help. Here are two links that are worth saving as favorites:

1. This is John Wood's site at http://www.erisaontheweb.com/

2. This is Ben Glass's site at http://www.vamedmal.com/

John is here in Nashville, in the 6th Circuit. Ben is in Virginia, in the 4th Circuit. They both do an excellent job of presenting ERISA information in an easy-to-use fashion for you read.

Ben has a section of his site that is restricted to plaintiffs' attorneys only. If you e-mail him, and certify that you do only plaintiffs' work, he will provide you with a password.

Take a look at their sites, I think you'll like what you see.

2005 Workers' Compensation Update

Thanks to John Day (www.dayontorts.com) for bringing this link to my attention, to wit:

http://www.tennessee.gov/labor-wfd/wcac/2005-Court-Decisions-Jan20-05.pdf

This is a summary of significant workers' compensation decisions in Tennessee.

This link will help you stay current on Tennessee workers' compensation issues.

Thanks, John.

Books For Litigators

Once a week, I am going to start recommending books for litigators to read. My first selection is McElhaney's Trial Notebook, by James W. McElhaney. The new fourth edition is out (I have the third edition too) and it is a great book.

You can purchase this book though the American Bar Association's ("ABA") Web site. It's regularly $64.95, but, it's $54.95 if you're a member of the ABA Litigation Section.

The ABA link is: http://abastore.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5310348


This is a great book to have on your shelf, whether you're a solo practitioner or in a big firm.

Keep It Simple

A friend and mentor of mine taught me a valuable lesson the other day. What is it? Keep it simple...and avoid overkill! Sometimes, as a lawyer (and especially a younger lawyer), you tend to overdo things because you get so wrapped up in the trees, i.e., the thing you're working on, that you lose sight of forrest, i.e., the big picture. As a result, you lose your bearings because you are trying to do all this extra stuff that doesn't help your client out, or you, at all. This seems like such a simple concept -- and so obvious -- but it can be easily overlooked. Trust me, don't do it! Always keep sight of the result you're trying to achieve -- and don't waste time getting there!

Be result oriented. It pays off.

State Hospital Information

Save this to your favorites. Here, once again from Health Guide USA, is a link for each hospital in every state, to wit:

http://www.healthguideusa.org/hospitals/US_hospitals.htm


I thought you might be able to use this link.

Tennessee Trial Lawyers Association

Are you a lawyer in Tennessee that does some plaintiffs' work but no defense work (except for criminal defense)? If so, are you a member of the Tennessee Trial Lawyers Association? If not, you should be.

Here's the link to their site: http://www.ttla.org/tn/

Managing Information in the Electronic Age

Ever hear of the "Sedona Guidelines"? I had not until a friend of mine wrote about them in his blog. Actually, I'm speaking of The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age (http://www.ediscoverylaw.com/cat-resources-.html). As far as I know, these are the only guidelines available on managing electronic information, records, etc. (I'm sure there are more out there, I'm just not aware of them).

Being familiar with them could not hurt, especially in the discovery process.

Also, Brandon Bass brought these to my attention, he has a great blog at http://www.tnbusinesslitigation.com/

The Medical Malpractice Myth: A Must-Read

The other day I wrote about The Medical Malpractice Myth in this blog. I had read some excerpts and seen a spot about it on C-SPAN (yes, I was watching C-SPAN) last Saturday. It intrigued me, to say the least. So I ordered the book. I received my copy today and I have one thing to say about this book: get it! It is a must-read for anyone. No matter who you are, I think you need to read this book.

It may be the little dog that pulls the curtain back for you.

Here's the link: http://www.amazon.com/gp/product/0226036480/sr=1-1/qid=1139440948/ref=pd_bbs_1/002-7416319-0013632?%5Fencoding=UTF8

Justice Birch Retires

Justice Birch will be retiring (along with Justice Anderson) this August. He too will be greatly missed. Governor Bredesen, to paraphrase, said Justice Birch was a trailblazer in the legal profession. Justice Birch is also the only Justice to serve on every level of our court system (i.e., from general sessions court (Tennessee's lowest court) to our Supreme Court (Tennessee's highest court)).

To read more, go to:http://www.wsmv.com/Global/story.asp?S=4417254

Body Theft Scandal

This story will shock you (or at least it should). I know this has been out before but you should read this story at this link:

http://www.nbc4.tv/health/6429650/detail.html

Allegedly, employees of funeral homes were cutting up bodies and selling the parts.

Justice Anderson Retires

Justice Anderson will be retiring in August. For those of you not from Tennessee, Justice Anderson is a very well-respected justice on the Tennessee Supreme Court. He will be missed.

Here is a link to read more about Justice Anderson and his retirement:

http://www.tsc.state.tn.us/

Again, he will be missed.

Jury Selection Begins in Fourth Vioxx Trial

Here's the link to the Businessweek article:

http://www.businessweek.com/ap/financialnews/D8FB5NKG1.htm

I think this will be an interesting trial.

Appellate Practice in Tennessee

Do you have an appeal in Tennessee? Have you ever done one before? If you have not, here is a good resource for you, to wit: http://www.nashbar.org/, then, on the left, click "members." There you will find the online version of Appellate Advocacy: A Handbook on Appellate Advocacy in TN (3rd ed.).

This is a great resource -- an invaluable resource -- for any lawyer handling an appeal in Tennessee. I also know that the fourth edition will be coming out soon.

The editor, Donald Capparella, is a friend of mine, and a great lawyer. Trust me, anytime you get to pick his brain (in person or via a read of this book) you should do it. It will pay off exponentially.

Web-Based Medical Research

Here's a link to help you do web-based legal research:

http://www.globalrph.com/index.htm

Federal Rules of Civil Procedure and Evidence Online

Here are two links for the Federal Rules of Civil Procedure and Evidence online as follows:

http://www.law.cornell.edu/rules/frcp/

http://www.law.cornell.edu/rules/fre/

A Little More on Medical Malpractice

I'm getting ready for a mediation tomorrow and I do not have anything of any substance today. I would, however, like to point out that if you have not ordered the book by Tom Baker, The Medical Malpractice Myth, you really should. It has some good information on the subject.

Also, here is a really good article from The Memphis Flyer about the state of affairs in Tennessee when it comes to medical malpractice insurance:

http://www.memphisflyer.com/gyrobase/Content?oid=oid%3A10517

To quote from the article, "[a]bout 5 percent of the doctors are responsible for over 50 percent of the claims." Wow!

An Unfair Sentence?

I wrote about the Wendy's finger case on the 18th of this month. I have a friend who has written in his blog about this case too. In his blog today, he points out how others have been sentenced for their wrongs, and he compares their sentences with Mrs. Ayala's sentence. When you compare their sentences with Mrs. Ayala, I think you'll be surprised. I was.

My friend's blog is at: www.dayontorts.com

P.S. This post may seem contradictory to the one I wrote on the 18th (don't get me wrong, I think she, and her husband, deserved a stiff sentence), however, when you compare the sentences (as John did), I think it will make you scratch your head and go "hmmm."

I thought this was interesting.

Rule 30 of the Tennessee Rules of Civil Procedure: It's Important!

When was the last time you read Rule 30 of the Tennessee Rules of Civil Procedure -- including the Advisory Commission Comments? There is some good stuff in there, namely: (1) in addition to the notice of an audio-visual deposition, a subpoena to attend an audio-visual deposition must also state that it is for an audio-visual deposition (some of us, myself included, though that only the notice to the deposition was required to state that the deposition would be recorded audio-visually); and (2) instructions not to an answer by opposing counsel are unethical -- and sanctionable.

There are two cases cited in the Advisory Commission Comments to Rule 30.03 that are worth reading, to wit: First Tennessee Bank v. FDIC, 108 F.R.D. 640 (E.D. Tenn. 1985); Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).

Here's the link to the Tennessee Rules of Civil Procedure (you will have to Google this link):

http://www.tsc.state.tn.us/opinions/tsc/rules/
TNrulesofcourt/civlproindex.htm

HEALTH GUIDE USA: Healthcare provider Information

Here is a great link for looking up healthcare provider information, e.g., licensing information for a doctor, etc. The link is as follows:

http://www.healthguideusa.org/index.htm

Let me know what you think of this link.

Thanks.

Wendy's Finger Scam: Part II

Remember the woman that supposedly found the finger in her bowl of chili at a Wendy's? She was sentenced to nine years today. So was her husband who was an accomplice.

See the story here: http://www.msnbc.msn.com/id/10910050/?GT1=7538

People have to have faith in our civil justice system for it to work properly. I think the judge in this case did what was right to send a message to anyone considering doing the same (and to maintain the people's faith in the system).

Bottom line: Don't try to "game" the system!

Service of Process

Ever had a problem with getting service on a defendant? Well, here's a link to a company that might be able to help you out:

http://www.1-800-serve-em.com/

Good luck!

Stella Liebeck: Do you know who she is? You should!

Stella Liebeck. Who is she? She is famous. Why? Because she is the lady who sued McDonalds over the spilled coffee. Do you know the entire story about this case (not just an anecdote)? Well, here it is (you may need to Google this link):

http://www.centerjd.org/free/mythbusters-free/MB_mcdonalds.htm

Read this story. I believe that once you know "the rest of the story" your take on this case will change.

Information, again, is vital and should be shared.

Thanks for reading!

The Medical Malpractice Myth, by Tom Baker

I came across an interesting book the other day, i.e., The Medical Malpractice Myth, by Tom Baker. I thought it would be worth sharing.

Disinformation seems to be the norm when it comes to a discussion about medical malpractice. This book seems to bring very pertinent -- and correct -- information to the discussion (and it's not what the insurance industry is saying, either).

No matter what side of this debate you're on, accurate information is vital. Otherwise, everything is based solely on conjecture. No good can come from such a discussion. That is why I think this book is a good read.

Food for thought.

P.S. Here's the Amazon link to purchase the book (you may need to Google it):

http://www.amazon.com/gp/product/0226036480/103-6652861-6398214?v=glance&n=283155

I had to recreate some of these prior posts, however, I want to say that I got some really great comments on this post. Thank you all for the nice comments.

Daubert on the Web

Here is a good site, which is state-specific, for Daubert issues, to wit:

http://www.daubertontheweb.com/

It's helpful.